Conditional Use Can Become Nonconforming Use

In a recent appeals court ruling recommended for publication, Yassin Hussein and Germantown Auto Sales, LLC, v. Village of Germantown Board of Zoning Appeals, the court ruled that a municipality cannot enforce a conditional use permit issued prior to a zoning ordinance amendment which removed that use as a conditional use, and that the use continues as a legal nonconforming use.

Germantown Auto Sales had been issued a conditional use permit for an auto sales, repair and service station in 1973.  In 1988 the Village of Germantown revised its zoning code, eliminating auto sales as a conditional use in the zoning district.  In 2009, Germantown Auto Sales sought Village permission to increase the number of cars parked on the property beyond what the 1973 conditional use permit allowed.  The Village denied the expansion, and demanded that Germantown Auto Sales come into compliance with its 1973 permit.

In a certiorari action, the circuit court ruled that Germantown Auto Sales had a legal nonconforming use, and must live within the bounds of legal nonconforming uses, but that the Village could not seek to enforce the conditional use permit from 1973.  The appellate court affirmed the circuit court decision.

The result for Germantown Auto Sales is less than clear – Germantown Auto may continue its historical use as is, but expansion (which is what it was after) would be risky.  As the court stated, quoting an earlier case, “if there is an identifiable change in the [legal nonconforming] use, the enlargement is illegal. If the expansion is a result of a mere increase in the historically allowed use, the enlargement or expansion will be allowed subject to regulatory markers.” Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 27, 522 N.W.2d 536 (Ct. App. 1994).  Thus an incremental expansion due to the natural ebb and flow of the historical business use would probably be safe.  However any major change risks losing the nonconforming status altogether.  It appears to me there’s a large grey area between the two.

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